“Having weighed up all the relevant factors before us, we conclude that there exist exceptional circumstances that out weigh the strong public interest in deportation. In short terms … the harsh consequences of deportation are not justified in this particular case. A close family unit comprising of [sic] the Appellant, his wife and their two sons would be split up, very much to the latter’s [sic] best interests. They will loose [sic] their father for at least ten years in practice and of course through no fault of their own. Their mother will lose her husband and she will be forced into single-[sic] parenthood. The Appellant committed a ‘one-off’ offence, the seriousness of which is mitigated by the facts of his case. There is a low risk of him ever doing anything similar again.”
“The combination of these factors goes to outweigh what are obviously the very weighty matters resting in the Respondent’s side of the scales.”
“We are clear that this case is an example of a very strong case, in all of the circumstances and relative to many of the appeals seen by the Tribunal and the higher courts. It does not succeed by a great distance; but that is perhaps never going to be the case in light of the current statutory and jurisprudential landscape.” [Emphasis added]
“The appeal is allowed on the basis that there are exceptional circumstances under paragraph 398 of the Immigration Rules and that the Appellant’s deportation would be a disproportionate interference with his family life.”
“Also, the emphasis of [on?] the low risk of reoffending arguably indicates that the Judge had lost sight of the fact that the public interest in deportation arises because the appellant is a foreign criminal, which he is because of a single act of offending and that public interest is not diminished because he may not reoffend in the future.” (c) The permission Judge then highlighted the following passage in the FtT’s determination: “Taking everything set out above into account, we find that whilst the offence was indeed serious, and while there can be no excuse for the violent and intentional assault, there are in this case significant mitigating factors in the Appellant’s favour (in particular his mental health at the time) that render the incident less serious than it otherwise might have been.”
“A similarly flawed approach is arguably apparent in [this] reasoning which sits uncomfortably with the legislative objective of characterising the offences as serious such as to justify deportation.”
“The Secretary of State submits that the public interest has not been properly balanced against the Appellant’s circumstances ….. The Judge has placed a great deal of weight on his finding that there is a low risk of re-offending in relation to the Appellant. However, risk of re-offending is not the only factor to be considered …. It is submitted that while the Judge has made reference to the other facets of the public interest, they have not been properly considered and weighed in the balance against the Appellant’s circumstances …. The Appellant’s circumstances are not exceptional so as to render the Appellant’s deportation disproportionate.”
“Taking everything set out above into account, we find that whilst the offence was indeed serious, and whilst there can be no excuse for the violent and intentional assault, there are in this case significant mitigating factors in the Appellant’s favour (in particular his mental health at the time) that render the incident less serious than it might otherwise have been.”